EIRP Proceedings, Vol 9 (2014)

Abstract:
Within the paper it is examined the constitutive content of the
offense on leaving post and the presence to work under the influence
of alcohol or other substances according to the new criminal code
entered into force on 01.02.2014. The novelty consists in the
examination performed in the light of the new amendments and
completions to the law, and the comparative analysis with the old
law, considering the transitional situations involving the more
favorable application of the criminal law. The paper can be useful to
law students, academics and practitioners in the field, and all those
interested in the new legislative amendments occurred in the Romanian
criminal law, in this area.

The Criminal
Code of 1969 included offenses against the security of railway
traffic in a separate chapter under Title VI, with the marginal title
“Crimes
that are detrimental to some activities of public interest or other
activities regulated by law.”

In the New Criminal Code, these
offenses are contained in Chapter I with the same title, within the
Title VII marginally called “Crimes against public safety”.

One of the offenses specific to
safety domain for traffic and rail transports provided in the
mentioned chapter of the new Criminal Code it is the offense of
“leaving post and the presence to work under the influence of
alcohol or other substances”, an incriminated offense in the
content of article 331. Amid some critical observations from the
Romanian doctrine in the recent years (Rusu, 2009, p. 420), the
marginal title of the offense provided for in the Criminal Code of
1969 was amended.

Also, due to other critical
opinions (Rusu, 2010, p. 51), in the new law there were introduced
changes regarding the active and passive subjects of the offense,
widening their scope, according to the regulations in this area.

In addition to the critical
opinions the legislative changes were imposed also due to the
significant changes that have occurred in the last years regarding
the structure, the organization and functioning method of the
circulation system and the railway transport as a hole.

Therefore, the new settlement
brings a series of additions and significant changes in the
constitutive content of the examined offense.

2.
The Constitutive Content of the Offense

As in the case of other offenses
within the constitutive content of the offense we will examine the
objective and subjective side.

2.1. The Objective Side

As other offenses in this group,
the objective side of the offenses referred to in article 331 of the
new Criminal Code has as components a material element complemented
by an essential requirement, immediate result and the causation
connection.

The
Material element
of the objective side is achieved through various actions, which
consist of either leaving post during working hours or the presence
to work under the influence of alcohol (with a certain concentration
in the blood) or other psychoactive substances.

Regarding the offense referred to
in paragraph (1) of article 331 of the new Criminal Code (leaving
post), the action consist of the employee, with direct
responsibilities in the safety of railway traffic, leaving his post
unjustifiably in any way or form. For the existence of material
element it has no importance the reasons for leaving the post, which
can be diverse, namely: to rest or have fun, to run other external
activities of his duties, willful abandonment of the post without
cause, resignation, etc. It also does not matter the time the post
was left unguarded by the employee in question, or other reasons
invoked by the person. The circumstances that determined the action
of the active subject of leaving the post are in their essence only
general individualization criteria for deciding on the punishment
provided in article 74 of the new Criminal Code, criteria that need
to be considered by the court.

Our doctrine admitted that “the
action of leaving the post can be committed either by an act of
willingness (leaving the post at a time when the employee's presence
was required) or by omission, not returning to the post in due time.
(Dongoroz, 1972, p. 311)

We disagree entirely with this
interpretation, since the first case cannot exist in its materiality
in all circumstances, as according to the rules of organization and
functioning of the transport system, there are certain posts, where
the permanent presence of the employee is required. In other words
you cannot infer the existence of moments in which the presence of
certain employees is not required at their posts (in these
circumstances). Even if for some reason, the employee concerned
leaves his post, but returns, the leave, as the return to post are
specific job’s tasks (in the case of the signalman, who has the
task of signaling the train leaving the station, his work is achieved
by leaving the movement office and going on the station platform,
then he returns to his office, where he performs other tasks specific
to his job). In conclusion the station in question cannot be left at
a time when the presence is necessary, because the presence on the
job is necessary permanently, due to the tasks specific to the job,
functions that are executed only by the occupant of the post and not
by another person, regardless of his quality and qualifications.

We mention, however, that there
are situations when leaving the station, my lead to the
non-fulfillment of the essential requirement, these situations are
rare, and as such the employee shall not be charged for the offense
of leaving the post. But we totally agree with the interpretation
according to which the employee can perform the action by omission,
i.e. not returning to his post, at the place destined for the
execution of tasks specific to the job. (Diaconescu & Duvac,
2009, p. 639)

In this case, we present the
example of the signalman who left the movement office to give the
signal of departure of a train from the station (an activity that is
included in the job’s responsibility), but it does not return
to the office as soon as he achieved this activity, moving to another
place. In this case the existence of the offense, in addition to the
action of the active subject, is conditioned by the establishment of
fulfilling the essential requirement.

The material
element of the objective side for the offense provided in paragraph
(2) thereof, is in action by the employee with specific competences
and duties of traffic safety, exercise these tasks with an
infiltration
into the blood stream of over 0,80 g/l of pure alcohol
and he exercises them by being under the influence of other
psychoactive substances.

In the first
case, we note that achieving material element is conditioned by the
existence of the limited alcohol content of exhaled air below which
there is no question of the existence of the offense. Thus, under the
conditions where the employee exercises the job with an infiltration
into the blood stream of over 0,80 g/l of pure alcohol
or less, there is no question of the existence of this crime. At the
same time, if the employee is executing his duties alcohol content of
exhaled air of 0.81 g /l of pure alcohol in the blood, it will be
held criminally responsible.

For the
existence of the crime it is necessary that the alcohol’s
level of infiltration into the blood stream
established by the legislator to be found at the time of the offense,
the collection of biological samples to be examined in the
laboratory. A possible establishment of the alcohol level of the
employee by an alcohol test or other such devices that measure the
alcohol concentration in the exhaled air is not likely to lead to the
finding of infringement.

In the second case it is
necessary to establish that the employee in question exercises his
working tasks under the influence of psychoactive substances. As the
legislator did not mention the substances or their quantity, it
results that regardless of the consumed or injected amount, the
offense will remain, the essential condition, although not mentioned
by the legislator, being that the effect of these substances is much
like alcohol regarding the conduct and behavior of the employee.

For the existence of the crime it
is required the collection of biological samples and their analysis
in the laboratory in the case of these substances as well. (Hotca,
2012, p. 753)

The
essential requirements.
In order to complete the material element of the objective side, it
is necessary that the act of leaving the station by employee with
direct responsibilities in ensuring traffic safety on the railways
[referred to in article 331 paragraph (1) of the new Criminal Code]
meets several essential requirements, the first of them costing in
endangering traffic safety.

As supported in the literature by
many authors (Kahane, 1972, p. 312; Diaconescu Duvac, 2009, p. 639;
Rusu, 2009, p. 218), this requirement is a qualitative prerequisite
of the act of violating the office duties, by leaving the post, i.e.
a potentiality, a possibility, and not a result.

The essential requirement will be
satisfied whenever the examination of the circumstances of the
commission of the offense will result by the action of leaving the
post which determined the endangering of the railway traffic safety.

In the situation where by the
incriminated action it is found that it could have been endangered
the safety of railway traffic, and in fact it did not put in danger
this value protected by law, there will be no offense. It is
understood that in such a case the employee concerned will bear other
consequences, which in their essence exceed the criminal liability,
being though particular situations as well, where the employee
concerned is criminal liable for other offenses.

We will be in the above mentioned
situation (lack of criminal liability), when a signalman executing
his activities on a railway station located on a side section, leaves
the post for a period of about 30 minutes, while the next activity
circumscribed to his competence of ensuring traffic safety, will be
exercised over two hours after leaving the station. In such a case,
although the post is classified as being in the category of those
responsible for ensuring traffic safety, the signalman will not have
a criminal liability, as due the act of leaving the station did not
endanger the safety of traffic, thus not fulfilled the requirement
key.

For the existence of the offense
provided for in the provisions of paragraph (2) of the same article,
alcohol content of exhaled air of over 0.80 g /l of pure alcohol in
the blood or being under the influence of other psychoactive
substances, represents the conditions for the existence of the
material element of the objective side, conditions that implicitly
acquire the character of essential alternative requirements. In this
case, it is no longer necessary finding the action that constitutes
the material element of the objective side of endangering traffic
safety of vehicles, intervention or maneuver on the track, as the
legislator considered that the mere presence at work under the
influence of alcohol (within the incriminated limits) or under the
influence of other substances would endanger traffic safety.

The
immediate result.
For the existence of one of the two offenses (or sometimes both, in
competition), it is necessary that their immediate result
(incriminated actions) consist of creating a fact situation dangerous
to the safety of railway traffic. (Pascu & Gorunescu, 2009, p.
483)

Finding immediate results is
achieved at the same time as the finding of the offense of leaving
the post or the performance of activities under the influence of
alcohol (within the limits of the law) or other psychoactive
substances.

For the existence of the offense
provided for in article 331 paragraph (1) of the new Criminal Code,
it is not sufficient to establish that by the incriminated actions it
could have endanger the safety of railway traffic [as article 275
paragraph (1) of the Criminal Code in force], it is necessary that
these actions effectively put into danger the traffic safety of
transport means, intervention or maneuver on the railways.

It is important to establish and
with direct consequences in the assessment of the immediate result
the following circumstances:

the importance of post in the
railway station in question;

the importance of the activities
that need to be executed while the active subject left the station;

activities specific to road
safety that needed to be performed in the period of time that the
active subject was absent from his post, the direct effect of their
non-performance in the context of traffic safety in the area;

if in the period of absence from
his post, the activities that needed to be performed by the active
subject were carried out by another person, were not executed and so
on;

what was the actual activity of
endangering traffic safety in the area etc.

In the case of the offense
provided for in article 331 paragraph (2) of the new Criminal Code it
is not required finding the immediate result, the legislator
considered that it exists at the moment of establishing the physical
situation in which the employee is in, i.e. under the influence of
alcohol (within the incriminated limits) or other psychotropic
substances.

In the aggravated way provided in
article 331, paragraph (3) of the new Criminal Code, the immediate
result is supplemented by another special result, which becomes
circumstantial element of the simple ways and it consists in
producing a railway accident.

We conclude that for the
existence of the crime in the aggravated way, it is not sufficient
that by the incriminated action to endanger the safety of railway
traffic, it is necessary to produce a material damage, that consists
of bodily destruction or damage of vehicles, railway rolling stock or
installations rail.

Causation
connection.
To complete the objective side of the offense to leave the post or
the exercising of their duties under the influence of alcohol (within
incriminated limits) or other psychoactive substances, it is
necessary to establish a causal connection between action that
constitutes the material element and immediate result. The lack of
causation connection leads to the lack of the offense.

If in the case
of the offense provided for in article 331 paragraph (2) of the new
Criminal Code, the causation connection results in ex
re,
the offense provided for in article 331 paragraph (1) of the new
Criminal Code should be investigated, following a finding of its
existence.

2.2. The Subjective Side

In the case of offenses such as
leaving the post or presence at work under the influence of alcohol
(within the incriminated limits) or other psychoactive substances,
the form of guilt, with which the active subject acts, is the
intention of both forms, namely direct and indirect.

There will be direct intent when
the active subject of the offense, an employee with responsibilities
of ensuring traffic safety on the track, leaves his post or executes
his duties under the influence of alcohol or other substances,
foreseeing the result of his act that consists of endangering traffic
safety of transport means, intervention or maneuver on the railways
and he acts in order to produce this result.

Indirect intention will exist
when the active subject of the offense, executing one of the
incriminated actions (or both) foresees the result of his act that
consists of endangering the safety of transport means, intervention
or maneuver on the track, and although that result is not intended,
he accepts the possibility of its occurrence. Also, both forms of the
intent will exist each time, in the case of the offense provided for
in article 331 paragraph (2) of the new Criminal Code.

In the aggravated way of the
offense the active subject will act with direct intent, when he
leaves the post or working under the influence of alcohol or other
substances, foreseeing the result of his act which may consist of an
accident on the railway and he acts in order to produce such result.

The examined offense can be
committed in its aggravated way and with direct intent when leaving
the post or working under the influence of alcohol or other
substances, the active subject can predict the outcome of his act,
which may consist in causing a railway accident, and although he does
not pursue this result, he accept the possibility of its occurrence.

Besides the
intent, the offense in its aggravated way may be committed also with
exceeded intention (praeter
intentionem)
when the active subject intentionally leaves his post or works under
the influence of alcohol or other psychoactive substances with the
intent to endanger the safety of railway traffic, and the result is a
railway accident; the worse result that he had foreseen, he has not
accepted considering the baseless that it will not produce, or a
result that he had not foreseen, even if he could have or should have
foreseen it.

In conclusion,
we find that under the subjective aspect, this offense can be
committed with direct or indirect intent and with exceeded intent
(praeter
intentionem).

As mentioned
previously, this offense can be committed by a
legal entity, which
carries outactivities
specific to railway, circumscribed the safety of the transport means
traffic, intervention or maneuver on the railways.

In general, the guilt forms of
the legal person are identical to those of physical entities, but not
absolutely necessary for the existence of the crime, there are
situations in which for guilt form of the active subject, the legal
entity does not coincide with the form of guilt of the physical
entity.

As in the case of other offenses
of this kind, in the case of attracting criminal liability of the
legal persons, they will be criminally charged some employed physical
entities of the responsible legal entity. This applies to the rule
where there will be criminal liability of two different categories of
physical entities. In the first category there are included the
physical entities who have actually performed the action or inaction
that endangered the safety of means of transport, intervention or
maneuver on the railways and it represents the material element of
the objective side; in the second category are the person /the
persons from the legal entity’s management who gave the order
against the law.

In all cases the individual
active subject in the management of the legal person ordered the
execution of an action by which it was performed the material element
of the objective side, the form of guilt of a physical entity will be
the same as a legal entity, the act being interpreted as executed in
order to achieve the activity object, in the interest of or on behalf
of the legal entity.

We exemplify the case where a
person in an organization, responsible for the management of a
carrier demands to a wagon maneuverer to leave his post in order to
use him in another activity, even for the benefit of the legal
entity. In that event wagon maneuverer left his post, although he
foresees the result of his act, namely endangering the safety of rail
traffic, it is not in his intention to have this result, but he
accepts the possibility of its occurrence (the form of guilt in this
case is indirect intent). Both the physical entity from the
management of the legal entity, and the legal entity will be
criminally liable for committing the offense provided for in article
331 paragraph (1) of the new Criminal Code, the same form of guilt,
i.e. indirect intent.

The offense provided for in
article 331 paragraph (2) of the new Criminal Code can be committed
by a legal entity, when an individual from its management, demands
the execution of service by a driver or other employee with direct
responsibility in railway traffic safety (a demand that it is
executed), although the employee shall inform that the person in
question has used alcohol beyond the permissible limit of the law.

While there may exist in
principle to determine their existence, the motive and purpose, they
have no relevance to the subjective content of each of the two
offenses, the importance of their establishment during criminal trial
being necessary in order to individualize the criminal sanctions that
will be applied to the author(s) of this offense, and in particular
the sentence.

3.
Conclusions

As mentioned changing the legal
content of this offense was determined by the critical opinions made
in the recent years in Romanian doctrine amid the reorganization of
traffic system and railway, something which has considered taking
activities from this segment of economic activity by the private
system.

As expected, with the change of
the legal content of the offense, changes have occurred in its legal
content.

The main changes to which we
refer in our examination cover: the introduction of a new alternative
action in the content of the objective side consisting of the action
to fulfill the duties under the influence of other substances with a
similar effect to alcohol, the introduction of a maximum limit of
alcohol of not exceeding 0.80 g /l of pure alcohol in the blood, and
the need of finding another result, namely that of endangering the
safety of railway traffic.

All these changes, expressly
required in the doctrine, aim at contributing to improving the
legislation, as well as helping to prevent crimes of this kind.

As a general conclusion we
consider that the new legislation, rooted in the general
socio-economic realities of the current Romanian society, is intended
to make an important contribution to preventing and combating crime
of this kind.